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Reporting

Sexual and Domestic Abuse: a Jewish Legal Perspective


Introduction
A number of deeply uncomfortable discussions surrounding attitudes to reporting sexual abuse within the Jewish community in the UK and overseas have recently appeared in both Jewish and mainstream media. They have called attention to the reality that for some British Jews, admitting that domestic and child abuse occur within our community, albeit at no greater frequency than in any other sector of society, remains unthinkable. It is understandably difficult to accept that members of ones own tribe could be involved in such abhorrent activities and it can be devastating when faced with incontrovertible evidence or even persistent rumours of sexual abuse by a family member or religious leader. These exposs, as well as a number of unsavoury highprofile allegations, have focused on the conduct of certain members and leaders of the strictly Orthodox (haredi) community and have consciously highlighted their attitude to reporting sexual and domestic abuse to the police and social services. And while the issue is not unique whistleblowers have often been treated with contempt in, for example, the military, universities and businesses, Orthodox informers must also contend with accusations of mesirah informing on a fellow Jew and their ramifications. In this paper, I will explore the thorny issue of mesirah and ascertain how it applies to allegations of domestic or sexual abuse and determine appropriate Jewish juridical guidelines for reporting that are responsive to the demands of Jewish law, contemporary sensitivities and mandatory requirements.

Background
Even a cursory examination of early Jewish sources produces an overwhelmingly negative picture of reporting a fellow Jew to nonJewish authorities, whatever the alleged offence. The Talmud lists the moser (informer) among the worst sinners apostates and those who incite others to sin and declares that they descend to Gehinnam (Hell) and are judged there for many generations.1 Although Rashi, the foremost talmudic commentator, narrowly defines informers as those who hand Jewish money to idolators,2 the informer was understood to be someone who reported any actual (or fabricated/exaggerated) wrongdoing of his or her coreligionists to nonJewish authorities. The Talmud itself explains that nonJewish authorities were ruthless when dealing with Jews who were handed to them for even minor infractions and actually sanctions eliminating informers, in extremis, where they pose a direct danger to the Jewish community.3 Maimonides (d. 1204, Spain and Egypt) codifies a broad understanding of the term: there are two types of mosrim (informers) (a) one who hands a fellow Jew to gentiles who will kill or beat him; (b) one who hands the property of a fellow Jew to gentiles neither has a portion in the World to Come.4 This antagonistic attitude to reporting reflects the political and social realities of Jewish life under the Roman Empire and during the Middle Ages. However serious the allegation against a Jew, the consequences of reporting him or her to unprincipled, exploitative and often Jewhating authorities,
1 TB Rosh HaShanah 17a. 2 Rashi ad loc. 3 TB Bava Kamma 117a. 4 Mishneh Torah (Maimonides) Laws of Repentance 3:12.

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Reporting Sexual and Domestic Abuse: a Jewish Legal Perspective



were worse. Jews were commonly singled out for inequitable treatment and handed sentences incommensurate with the offence committed. Worse, handing Jews, their property or even information about the workings of Jewish communities to the nonJewish authorities could compromise Jewish self determination and imperil the Jews precarious economic and social position. In many cases, Jewish communities had no option but to handle offenders internally, using trials, sentencing and severe sanctions, however unsatisfactory the outcome. Understandably, the moser was the most despised member of early Jewish societies reviled, excluded, and, in some cases, eliminated. The fear that the moser engendered is illustrated by a responsum of Rabbenu Asher (d. 1329, Germany and Spain), which describes how the community is extremely frightened of this man who frequently handed exaggerated reports about Jewish criminality to the ruling Moslem authorities.5 Rabbenu Asher permitted the Jews to take whatever steps necessary to rid themselves of the moser, as the entire Jewish community was imperilled by his actions. This is coded by the authoritative Shulhan Arukh (Rabbi Yosef Karo, d. 1575, Spain and Israel), which states that it is forbidden to hand a Jew into the hands of an idolater whether for his person or his property, even if he is a wicked and sinful person and even if he is causing others distress and upset Anyone who does this has no portion in the World to Come It is permitted to kill an informer anywhere, even today, and it is permitted to kill him before he informs.6

Continuation of Traditional Approach


This draconian approach has been bolstered by harsh experience over the centuries since the publication of the Shulhan Arukh. Jewish communities have frequently endured persecution, discrimination and unjust treatment at the hands of antiSemitic authorities. Examples of these inequities are too numerous to list, but even within the last 200 years, infamous cases include the kidnapping of Edgardo Mortara, a Jewish boy removed from his family by the Papal authorities to be raised as a Catholic; the Cantonists, Jewish boys forcibly conscripted into the Russian army, a practice that continued well into the 19th century; the Dreyfus Affair, in which a Jewish army officer was wrongly convicted of treason by the French military; and the Beilis Trial, in which a Ukrainian Jew was accused of ritual murder. Jews from Arab lands frequently fared little better.7 Haunted by these communal experiences, it is hardly surprising that Jews whose ancestors hailed from European and North African countries and fled persecution there, should retain a visceral negativity towards those who might report their coreligionists to the authorities, irrespective of the nature of the allegation. And of course, the more recent horrors of the Holocaust, during which reporting the slightest movements of fellow Jews could lead to their torture and execution, remains deeply embedded in peoples collective memory.


5 Responsa haRosh 17:1. 6 Shulhan Arukh Hoshen Mishpat 388:910. 7 See Martin Gilbert, In Ishmaels House: A History of Jews in Muslim Lands (New Haven and London: Yale University Press, 2010).

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Reporting Sexual and Domestic Abuse: a Jewish Legal Perspective


Understanding Contemporary Haredi Attitudes


The combination of extreme hostility to reporting found in classic sources and the ghastly legacy of antiSemitic persecution has informed the contemporary attitude to reporting found in some segments of the Orthodox community. As such, there are members of traditional communities who are convinced that mesirah is a heinous crime, one that will certainly consign both the reporter and the Jewish community at large to a dreadful fate. And in parochial village communities, nonconformity, especially in an area such as reporting, may be treated very harshly. Informers can be ostracised from their community, risking their professional, personal and social lives. It is not unknown for potential informers to fear that their childrens schooling and marriage options will be severely compromised should they go to the authorities rather than allowing the matter to be dealt with internally. Sadly, even intimidation is not unknown. Some rabbis insist that sexual abuse allegations be handled internally; indeed, in most situations, it is actually forbidden to turn to secular authorities when a viable Jewish alternative is available. Yet Jewish courts today are not equipped (or, most jurisdictions, empowered) to deal with accusations of abuse and even those communities whose leaders vehemently disapprove of reporting have failed to create any type of credible court or system to handle them. Yet since for the members of insular communities, identification with the group is the central and defining feature of their lives, the threat of exclusion can be utterly devastating, so much so that even those contemplating reporting horrible abuse may be willing to reconsider. This despite the obvious reality that in a world where Jewish authorities have no real powers, failure to report allegations of sexual abuse focuses blame on victims, protects perpetrators and encourages reoffending.

Mesirah in Sexual Abuse Cases


Our study thus far may help to understand the resistance in some quarters to reporting of even the most serious allegations. Yet notwithstanding the overwhelming negativity we have encountered, further enquiry reveals that the true picture with regard to allegations involving vulnerable people is more nuanced and in tune with modern sensitivities. Indeed, I will show that reporting in most sexual abuse cases is actually mandated by Jewish law. To investigate this further, I will consider the following points in turn: (A) whether the concept of mesirah applies in nondiscriminatory jurisdictions; (B) whether classic sources forbidding mesirah were ever, in fact, germane to allegations of sexual abuse; (C) whether statutory reporting obligations impact on Jewish legal considerations.

(A) Does Mesirah Apply in NonDiscriminatory Jurisdictions?


I have already considered the impact of the hostile nonJewish environments in which Jews commonly lived on the issue of mesirah reporting coreligionists to the authorities. While some contemporary

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Reporting Sexual and Domestic Abuse: a Jewish Legal Perspective



sources redact the laws of reporting virtually unchanged from their antecedent texts,8 others take a different approach, among them the great Lithuanian scholar Rabbi Yehiel Mikhel haLevi Epstein (d. 1908, Belarus), who writes that: It is widely known to historians that in times of old in faraway places, noone had any assurance in the safety of his life or property because of pirates and bandits, even if they took upon themselves the appearance of government. It is known that this is true even today in some places in Africa where the government itself is grounded in theft and robbery. Yet we can mention favourably the sovereigns of Europe, especially our great ruler, the Tsar of Russia and his predecessors and the Kings of Great Britain, who have spread their influence over many distant lands so that everyone will have confidence in the security of his life and property. The wealthy do not need to hide themselves so that others will not loot or kill them. On this rests all the laws of the reporter and informer that appear in the Talmud and codes9 While it is left to later scholars to debate whether R Epstein wrote his curious praise of the Tsar merely to bypass the Russian censor,10 his formulation is of great importance, as it indicates that the classic laws of mesirah may not apply where Jews live under nondiscriminatory regimes, such as the touchingly romanticised British Empire, where people feel secure in person and property. This approach is accepted in principle by Rabbi Eliezer Waldenberg (d. 2006, Israel), a leading judge in the Supreme Rabbinical Court of Jerusalem.11

(B) Are Classic Sources About Mesirah Germane to Sexual Abuse Allegations?
A careful examination of classic texts reveals that the extreme animus directed towards the moser may never have applied to situations in which the alleged offender poses a risk to individuals or to society. Numerous classic sources from the Talmud onwards, identify someone who threatens the physical welfare of members of the community as a rodef a pursuer, who must be eliminated by whatever means necessary, and certainly, when it will be effective, by handing him or her to the civil authorities.12 This applies even when there is a doubt as to whether the allegation is true, and, therefore, whether the person concerned is, in fact a rodef. This implements the biblical requirement not to stand idly by ones brothers blood.13 According to Maimonides,14 even someone who harasses the community may be handed to the authorities; it is obvious that sexual abuse is far worse than mere harassment.
8 See, for example Pithey Hoshen (Blau) vol. 5 4:2, which asserts that the full force of the law of the moser applies even today.

See also Diney Mamonot (Batzri) 4:93, which claims that even in a jurisdiction in which they bring all matters to the court, through interrogations and police, people can be destroyed. Despite the rather reactionary tone of these 20th/21stcentury sources, it would be naive to assume that even in the great democracies, all people are treated fairly by the police, courts and prison systems. 9 Arukh haShulhan (Epstein) Hoshen Mishpat 388:7. 10 R Epstein published the Hoshen Mishpat section of his work in the 1880s, during the reign of the autocratic, reactionary Alexander III. 11 Responsa Tzitz Eliezer (Waldenberg) 19:52. Even though R Waldenberg accepts that R Epstein wrote his statement for the government, he accepts R Epsteins central principle. 12 See TB Bava Kama 117a, TB Berakhot 58a, Responsa haRashba 1:181, Responsa haRosh 17:1. 13 VaYikra 19:16. 14 Mishneh Torah Laws of Injurer and Damager 8:11.

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In his gloss to the Shulhan Arukh, Rabbi Moshe Isserles (d. 1572, Poland) records a view based on mediaeval sources that someone who has been attacked by a fellow Jew may report him to nonJewish authorities, even if this causes the attacker great loss15. R Isserles also writes that when someone is occupied with deceit and the like and there is a concern that he will harm the public, it is permitted to report him.16 This is certainly true where reporting him will prevent him from attacking his victim again.17 In a responsum dealing with reporting child abuse, R Waldenberg points out that when the Shulhan Arukh forbids informing on an alleged offender, even if he is a wicked and sinful person, this does not apply to situations where the offender poses a threat, such as in sexual abuse allegations. R Waldenberg explains that in such cases, the purpose of reporting is to rescue (the victim or potential victim) so that (the perpetrator) cannot actualise his evil intention; hence it is permitted to report him; cases such as those before us (child abuse) are much worse than physical violence.18 R Waldenberg concludes his paragraph with the poignant phrase the court is the parent of minors the legal system exists to protect children and other vulnerable members of society from predators. This view, which is rooted firmly in early sources, applies irrespective of the considerations raised in section (A) above. As such, even in circumstances where the authorities treat offenders unjustly, as was certainly the case in R Isserles time, concern for the welfare of the alleged perpetrator is supplanted by the need to protect society from evil individuals who ruin the lives of others.

(C) Does Statutory Reporting Impact on Jewish Legal Considerations?


In most countries today, statutory reporting obligations pertain in a range of circumstances. A UK example is the provision under Section Seven of the Proceeds of Crime Act 2002 requiring those working in certain regulated professions to report suspicions of money laundering to the authorities. Another common example is the requirement for medics to report cases of suspected domestic or sexual abuse. A number of rabbinic authorities discuss whether such mandatory reporting requirements create a Jewish legal imperative, irrespective of the laws of mesirah.19 These include Rabbis Shemuel Wosner20 (b. 1913, Israel), and Moishe Sternbuch21 (b. 1926, South Africa and Israel), both worldrenowned experts in Jewish law, who state that statutory obligations are to be taken very seriously and include them in their evaluation of due process. I have demonstrated that it is doubtful that the laws of mesirah were ever intended to be applied in jurisdictions governed by democratic, equitable laws, nor is likely that they were ever germane in cases where the offender poses a threat to individuals or society. I have also noted that according to major contemporary authorities, statutory reporting requirements are significant in determining how to proceed in the event of an allegation. As such, notwithstanding the vigorous opposition to mesirah found in classic sources, it seems that in principle, Jewish law requires its adherents to report allegations of sexual abuse to the authorities.
15 Gloss to Shulhan Arukh Hoshen Mishpat 388:7. 16 Ibid. 12. 17 Shakh gloss to Isserles (Kohen) ad loc. 45. 18 Waldenberg, ibid. 19 Jewish law includes the principle dina demalkhuta dina the law of the land is the law (TB Nedarim 28a et al.). Scholars

have debated for centuries whether this principle applies to all areas of law, only just laws or merely to financial law, as well as what to do when the law of the land explicitly contradicts Jewish law. 20 Responsa Shevet haLevi (Wosner) 2:58. 21 Rabbi Sternbuchs approach to reporting allegations of abuse will be discussed in detail in the next section.

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Reporting Sexual and Domestic Abuse: a Jewish Legal Perspective



In the final section of this study, I will examine the approach in practice of modern Jewish authorities to reporting abuse and demonstrate that the normative Jewish legal position is, in fact, that reporting is mandatory.

The Views of Contemporary Experts


I now turn to contemporary approaches to reporting abuse. I will examine the view of a number of contemporary haredi experts and then look at the policy statements of two major rabbinical organisations.

The Position of Rabbi Moishe Sternbuch and other Leading Haredi Authorities
Rabbi Sternbuch, the vicepresident of the rabbinical court of the Edah Haredit (strictly Orthodox separatist authority in Jerusalem), is well known for his outspoken opinions about reporting allegations of abuse. While far from being a lone voice in the haredi world, he has written and pronounced widely on the topic, making his view especially instructive. In this matter, R Sternbuch is aided by Rabbi Dr. Daniel Eidensohn, a psychologist and author of three published volumes on the issues of child and domestic abuse in the Jewish community which incorporate and promote R Sternbuchs opinions.22 The following summary of R Sternbuchs opinions is drawn from his written responsa and also from R Eidensohns understanding of R Sternbuchs position as presented in his own works on child abuse. By way of introduction, R Sternbuch acknowledges that there have been serious errors in dealing with abuse allegations within the observant community. Some people were concerned that publicising such incidents would harm the reputation of the community and its institutions, others mistakenly believed that those who had been molested would get over the abuse in time and that the damage to the reputation of others was more harmful and embarrassing than the hurt and shame experienced by victims.23 Adding to this the fear of the crime of mesirah, it was not unusual for community leaders to force an abuser to move districts, or a teacher under suspicion to switch schools, yet direct the victim and his or her family not to reveal the reason for the change, especially to the secular authorities. It was not unheard of for the family of a victim who had chosen to report a molester to be ostracised and driven from the community for supposedly disregarding its welfare. Rejecting this approach as horribly mistaken, R Sternbuch offers welldefined, unequivocal guidelines. He makes it clear that (a) the majority of Jewish authorities permit going to the police when there is a clear threat of physical or sexual abuse; (b) this is the only correct course of action in sexual abuse cases, and the community should not attempt to handle such allegations internally; (c) historic abuse
22 Daniel Eidensohn, Child and Domestic Abuse, 3 vols. (CreateSpace Independent Publishing Platform: vols. I & II 2010, vol. III 2011). Rabbi Dr. Eidensohn has been most helpful in revising and improving this essay, something I gratefully acknowledge. 23 While to those familiar with contemporary thinking about the devastating longterm consequences to the victim of sexual abuse, this attitude seems absurd, it was common throughout society (not just within religious communities) until relatively recently. It is also important to note that contrary to popular belief, most abuse is perpetrated by someone known to and trusted by the victim. As such, the victim often assumes that noone will believe the accusations. This is compounded by the fact that rabbis often dismiss charges against pillar of the community types, such as rabbinical colleagues, doctors and teachers, because they know them and cannot believe that they are capable of such heinous acts.

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cases must also be reported, as the vast majority of abusers have a strong propensity to reoffend; (d) where, as is the case in most countries today, the law requires suspected abusers to be reported, at least by doctors, teachers and psychologists, it follows that complying with the law is a Torah obligation; (e) where there is clear evidence of abuse and a rabbi advises not to go to the police, he should be ignored indeed, any rabbi who suggests sacrificing innocent people to avoid negative consequences to others is not acting as a rabbi at all. Furthermore, in a responsum, R Sternbuch clarifies the obligation of a school principal to protect his or her students even if this means listening to rumours and gossip about alleged abusers (something ordinarily forbidden), since these allegations might be true. R Sternbuch emphasises that there is no prohibition of listening to rumours when there is a possibility of danger to others.24 Yet it is clearly extremely important to exercise caution. R Sternbuch reminds his readers that malicious accusations certainly occur, and as such, it is correct for the sake of objectivity that a competent rabbi one fully appraised of the gravity of sexual abuse and its ramifications for its victims be consulted before informing the authorities. Of course, this is only possible when there is no imminent threat and the short delay caused by consulting with a rabbinical expert will make no difference. R Sternbuch makes it clear that when there is pressing danger to a child or other, the requirement to discuss the matter with a rabbi is waived and the matter should be reported directly and immediately to the police. Other major contemporary authorities from the haredi sector who mandate reporting abuse to the include Rabbis Yehudah Silman (Israel),25 and Hayyim Yisrael Belsky (USA)26 as well as the greatest expert of his time, Rabbi Shalom Yosef Eliashiv (d. 2012, Israel),27 who is cited as having said that abuse destroys a childs soul.

The Rabbinical Council of America (RCA) and the Court of the Chief Rabbi
In 2010, the leading rabbinical organisation in the USA, the RCA, issued a stronglyworded statement about reporting abuse allegations: The lives and futures of many of these victims and their families are harmed in significant ways: suicide, post traumatic stress syndrome, inability to form healthy relationships, inability to develop healthy intimate relationships, etc. Many victims of abuse in our community still remain silent and do not come forward to accuse perpetrators or seek help for fear of stigma, personal and familial consequences, or perceived halakhic concerns. The Rabbinical Council of America has resolved through past resolutions its condemnation of abuse and its censure of abusers and has affirmed, under the guidance and direction of its poskim (rabbinic decisors), that the prohibitions of mesirah (reporting crimes to the civil authorities) and arkaot (adjudication in

24 Responsa Teshuvot veHanhagot (Sternbuch) 5:398. 25 Yeschurun, vol. 15. 26 Although there is controversy surrounding Rabbi Belskys position, it is clear that he advocates reporting to the authorities; see <http://www.rabbis.org/news/article.cfm?id=105755>, accessed 08/13. 27 See < http://daattorah.blogspot.co.uk/2008/09/childabusecallingpoliceraveliashiv.html>, accessed 08/13.

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civil courts) do not apply in cases of abuse and in fact, it is halakhically obligatory to make such reports.28 In 2013, the RCA published the following clarification: For many years the RCA has condemned the efforts of many parts of the Jewish community to cover up or ignore allegations of abuse, viewing these efforts as against Jewish law, illegal and irresponsible to the welfare of the victims and the greater community. The RCA strongly advocates, as a matter of Jewish law, the reporting of reasonable suspicions of all forms of child abuse to the authorities and full cooperation with the criminal justice system. The RCA decries any invocation of Jewish law or communal interests as tools in silencing victims or witnesses from reporting abuse or from receiving therapeutic and communal support.29 In early 2013, the Court of the Chief Rabbi (London Beth Din) issued a comparable statement: We have an obligation to safeguard the children of our community and we have to accept that, even within our own communities, there are those who steal the innocence of our children through criminal activity. We are acutely aware that sexual abuse can, (apart from being inherently abhorrent), destroy lives and cause a breakdown in relationships It is therefore essential that when abuse has occurred, the police must be informed without delay. Local communities should not attempt to deal with the situation internally. Delays in reporting abuse can cause vital evidence to be lost, allowing the abusers to continue violating our children the children of our communities will be protected by reporting abuse to the authorities whenever it take place. It is clear that the guidelines published by the major American and British Jewish religious authorities broadly concur with R Sternbuchs treatment of reporting as mandatory. It is hard to escape the conclusion that those rabbis who advise otherwise are not following normative Jewish law, but do so because of ignorance of the devastating impact of abuse or for social / political reasons.

Conclusion
In this brief study I have attempted to explain the deeply hostile attitude prevalent in some traditional circles to those who report fellow Jews to the authorities, even for the most serious crimes. I have demonstrated that this attitude exists at the complex interface between genuine religious imperative rooted in classic sources, communal politics and the realities of historic persecution. Yet I have clarified that the law of the informer may not be relevant to those who live within equitable, just democracies, especially those that have statutory reporting obligations and certainly does not apply to people whose behaviour renders them a threat to others. Based on these principles, I have shown that major contemporary Jewish legal experts, as well as leading rabbinical authorities in the

28 <http://www.rabbis.org/news/article.cfm?id=105544>, accessed 08/13. 29 <http://www.rabbis.org/news/article.cfm?id=105757>, accessed 08/13.

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USA and the UK are clearly of the view that reporting sexual and domestic abuse to the police without delay is a religious duty. Rabbi Dr. Harvey Belovski has been rabbi of Golders Green Synagogue since 2003. He read mathematics at University College, Oxford, received semicha from Gateshead Yeshiva, gained a PhD in hermeneutics from the University of London and is currently pursuing a Masters in Organisational Behaviour at City University. In addition to his rabbinical duties, he is principal of Rimon Jewish Primary School, the rabbinic mentor for University Jewish Chaplaincy, a teaching and research fellow at the London School of Jewish Studies, rosh of the Midrasha for Women, the rabbi of Kisharon and PaL, a faculty member at the London Montefiore Semicha Programme and a popular speaker, relationship counsellor and rabbinical advisor. Rabbi Belovski is a mediator and organisational consultant and the author of three books. He is married to Vicki, the community news editor of Hamodia UK and they have seven beautiful children. A version of this study first appeared in the 2014 Jewish Year Book.

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